noting that a statute of repose begins to run when the statutory triggering event occurs, “regardless of whether or not there has been an injury”
How later courts described this case
- noting that a statute of repose begins to run when the statutory triggering event occurs, “regardless of whether or not there has been an injury”
Written by the judges who cited it.
The opinion
GREENE, Judge,
concurring in the result.
I agree that summary judgment for defendant was proper because the statute of repose had run before plaintiffs filed their *661 complaint. I write separately to note my disagreement with two aspects of the majority’s analysis.
Substantial Completion
The majority reads Nolan v. Paramount Homes, Inc., 135 N.C. App. 73 , 518 S.E.2d 789 (1999), disc. review denied, 351 N.C. 359 , 542 S.E.2d 214 (2000), to establish a conclusive presumption that the issuance of a certificate of occupancy evidences the date of substantial completion. I disagree. The issuance of the certificate of occupancy raises only a rebuttable presumption of substantial completion, entitling a party to present evidence showing the residence was not yet usable for the purpose for which it was intended. See id. at 76-77, 518 S.E.2d at 791-92 (items on punch list could prevent or materially interfere with the plaintiffs use of the house as a residence, even though certificate of occupancy had already been issued).
In this case, plaintiffs presented no evidence challenging the rebuttable presumption of substantial completion on the date of the certificate of occupancy. Because no genuine issue of fact was raised, summary judgment as to this aspect of the statute of repose was properly granted for defendant. See N.C.G.S. § 1A-1, Rule 56(c) (1999).
Last Act
The majority appears to read Monson v. Paramount Homes, Inc., 133 N.C. App. 235 , 515 S.E.2d 445 (1999), as holding that repairs can never “toll or start the running [of the statute of repose] anew.” I disagree. A failed attempt to repair an alleged existing “defective or unsafe condition of an improvement to real property” starts the running of the statute of repose anew, as the attempted repair is the “last act . . . giving rise to the cause of action.” N.C.G.S. § l-50(a)(5)a (1999); see New Bern Assoc. v. The Celotex Corp., 87 N.C. App. 65, 70-71 , 359 S.E.2d 481 , 484-85 (in reversing summary judgment the court necessarily found repair of defective roof material for “last act” analysis under section 1-50(a)(5)a), disc. review denied, 321 N.C. 297 , 362 S.E.2d 782 (1987). Also, a repair made after the date of substantial completion pursuant to a continuing obligation under the original improvement contract represents the “last act” within the meaning of section 1-50(a)(5)a. Monson, 133 N.C. App. at 241 , 515 S.E.2d at 450 .
In this case, the evidence shows the repairs attempted by defendant in August 1994 were not to the stucco, the alleged defective condition created by defendant, but instead to the floors in the *662 house. Because no genuine issue of fact was raised, summary judgment as to this aspect of the statute of repose was properly granted for defendant. See N.C.G.S. § 1A-1, Rule 56(c).